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Lord Phillips of Sudbury: On behalf of my colleagues on these Benches, I shall speak to an inordinately long list of amendments contained in this grouping: Amendments Nos. 100, 101, 103, 104, 107, 108, 111, 112, 116, 119 and 138. That constitutes a Herculean, if not an impossible, task. Difficult though the job of organising amendments can be, I wonder why so many amendments have been strung together into one grouping. They cover a wide variety of highly important issues.

The broad intention behind the first two-thirds of these amendments is to ensure a higher level of distinction between, and a greater level of protection against, certain kinds of surveillance. Under the Bill, "directed" surveillance and the use of what are termed

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"covert intelligence sources" require the lesser control of self-authorisation from a designated person within the agency undertaking the action. "Intrusive" surveillance, which is defined in Clause 25, requires approval from a High Court judge acting as a commissioner.

I do not expect noble Lords have been able to study all the amendments in detail. It would weary the Committee were I to plod through them one by one, especially since we face a long day ahead. However, the general endeavour is, first, to probe what is an extraordinarily complex clause. I wonder whether the good noble Lords, Lord Bassam and Lord Bach, have lulled themselves to sleep trying to comprehend the many subsections contained in Clause 25. The clause has a certain "Alice in Wonderland" quality. "Through the Looking Glass" would not be a bad way of putting it. With these amendments we are trying to ensure that more surveillance has to be dealt with under the category of "intrusive" surveillance, so giving a greater degree of protection for the citizen, something which we believe it is essential to provide in this measure.

Perhaps I may refer briefly to the impact of the European Convention on Human Rights. I am sure that the Committee will ultimately be bored stiff--if it is not already--by constant reference to that convention. However, the convention lies at the heart of the Bill. Furthermore, it will come into effect through our own Human Rights Act on 1st October this year. We believe that the Bill as it stands and Clause 25 in particular fail to acknowledge that the European Court in Strasbourg has made it clear that Article 8 privacy rights can be engaged outside residential premises and private vehicles. Noble Lords will recollect that the definition in the Bill of "intrusive" surveillance is that which is undertaken in or outside residential premises or private vehicles. We believe that that is far too narrow a definition in terms of necessary protection of the public and in terms of the European convention.

For example, in the case of Niemietz v. Republic of Germany, the court held that a person is also entitled to a degree of privacy in professional and business relationships. I am sure that it is already apparent that if Clause 25 is left unamended, in particular subsection (3), it will be possible to carry out surveillance in a doctor's surgery, an MP's office, a restaurant, a public place, the workplace or a vehicle. None of those areas will be protected by the need for independent authorisation under the Bill as it stands. We feel that that is wrong. Furthermore, it is likely that the Bill will fall foul of the European convention and, in particular, will not meet the precedent set by the Niemietz case. Perhaps I may add that long ago, in 1967, the United States Supreme Court held that privacy rights protect people rather than places. We do not seem to have taken that on board.

I should also tell the Committee that the Data Protection Commissioner has recommended that the definition of "intrusive" surveillance should be widened to include any premises or location where the

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individual has a legitimate expectation of privacy. The same opinion has been expressed by the Irish Law Reform Committee and many others.

I turn very briefly to some of the individual amendments. Amendment No. 103 inserts the phrase in Clause 25(3) that any surveillance which,

    "interferes with any person's privacy in circumstances where that person has a reasonable expectation of privacy",

should be seen as an important and guiding principle.

In Amendment No. 107 we seek to add to Clause 25(3) a new paragraph which states:

    "Surveillance may be intrusive for the purposes of this Part irrespective of whether permission is obtained from a person able to give permission in respect of relevant premises to the conduct taking place on or in relation to those premises".

That is excepted from "intrusive" surveillance by the Bill as it stands.

Importantly, too, in Amendment No. 103 we seek to delete the major part of subsection (3), to which I have referred. We believe that that will avoid the rather ludicrous distinction between one type of vehicle and another, or one type of premises and another.

Given this immense grouping, perhaps I may deal briefly with the issue that I touched on at the beginning of my remarks; namely, covert human intelligence sources. That is dealt with--

Lord Williams of Elvel: Will the noble Lord tell me whether the Liberal Democrats were party to the grouping about which he has complained? It is the normal procedure for groupings lists to be agreed. Also, I am not quite sure which noble Lord is speaking from the Liberal Democrat Front Bench.

Lord McNally: That is a good point, but the noble Lord has held high office in this place and he knows how much negotiation can go on--particularly when the Government have given us one last day in Committee and have virtually rewritten the Bill on the hoof. My noble friend makes a small point; the noble Lord makes a debating point. We accept the groupings list; we are working to it, and we can also complain about it.

Lord Williams of Elvel: I am sorry to intervene again, but the practice has been clearly set out by Government Whips. It is that groupings are agreed, and once they have been agreed they may be degrouped, but nevertheless Members cannot complain about the grouping. Secondly, as I say, I am not sure who is speaking for the Liberal Democrat Front Bench.

Lord Phillips of Sudbury: I shall continue. I may have over-egged my pudding. I was not party to these groupings. All I can say is that I believe that the task that I have, without prolonging what I have to say and confusing the Committee, is unreasonable. That may be a lesson that we on these Benches also need to learn.

Perhaps I may turn to the second part of this string of amendments; namely, Amendments Nos. 111, 112, 116, 119 and 138. They all deal with the question of

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informers and undercover agents. The broad purpose of the amendments is an attempt to draw a distinction between a police officer who is an informant and a criminal who is an informant. In brief, we believe that it is important that a distinction should be drawn and that the second class of informant should come under a higher test as regards the authorisation needed. That is why we state in Amendment No. 119 that,

    "An Authorisation for the conduct and use of a covert human intelligence source whose conduct falls within section 25(7)(d) shall be governed by the same procedures as apply to the authorisation of conduct for the carrying out of intrusive surveillance".

The human intelligence source falling within (d) is included in proposed Amendment No. 112; namely, an informer who,

    "engages in a course of action which, without authority, could have led to his arrest and prosecution".

I should add that the European Court in Strasbourg, in Kopp v Switzerland, severely criticised the practice of internal executive authorisation without supervision by an independent judge in relation to surveillance activities. It is, therefore, at least questionable whether self-authorisation within one of the agencies set up under the Bill would be considered a sufficient safeguard in relation to the activities of participating informers and undercover officers in serious crime cases.

Perhaps I may refer also to the case of Teixeira de Castro v. Portugal--I am grateful to Justice for supplying me with these authorities. That case places additional weight on the need for independent authorisation and supervision of undercover operations if the exercise is not to breach the European convention. It may, therefore, in accordance with this string of amendments, be necessary to draw that distinction whereby the use of participating informers and undercover officers in cases where there could be criminal activity requires prior authorisation by a judge. I shall rest my case on these amendments at that rather inadequate and brief explanation.

3.45 p.m.

Viscount Goschen: I welcome the assurance given by the Minister in his opening remarks that his officials will be drawing up a list of agencies to which the provisions of this part of the Bill apply. It may be for the convenience of the Committee in our understanding of the amendments if the Minister could give an overall broad view of what type of agencies those will be. For example, the BBC was mentioned by my noble friend Lord Cope in two different instances: detection of TV licence evasion, and undercover television documentary programmes--which may also be made by agencies other than publicly owned ones; namely, independent television companies. So in order to aid our understanding of this complex set of amendments, and indeed complex part of the Bill, will the Minister give an overview of what type of agencies are being

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authorised; and if they are not mentioned in this section of the Bill, does it mean that any conduct of this nature would be illegal?

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